P V PRASAD Vs. COMMISSIONER OF PROHIBITION

JUDGEMENT

(1.) This Writ petition is filed for a Mandamus to declare the action of respondent No. 1 in not according prior clearance for establishment of a bar in the name and style of M/s. Jahnavi Restaurant & Bar, as illegal and arbitrary. The petitioner has applied to respondent Nos. 2 and 3 for grant of prior clearance for establishment of a bar in Rayachoty Town, YSR Kadapa District. It is the pleaded case of the petitioner that as far back as 24.06.2011, respondent No. 2 has recommended to respondent No. 1 for permission to grant prior clearance. The grievance of the petitioner is that in spite of the said recommendation, respondent No. 1 has not disposed of the petitioner's application.

(2.) On behalf of the respondents, the Additional Commissioner for Prohibition and Excise, filed a counter affidavit, wherein it is inter alia stated that the petitioner has not been running restaurant, which is a pre-requisite for grant of prior clearance to establish a Bar. It is further stated that in G.O.Rt. No. 833 dated 11.06.2010, the Government has issued policy guidelines for replacement of bars whose licences were not renewed/cancelled and that the Commissioner of Prohibition and Excise may notify such gaps inviting applications for grant of prior clearance giving a minimum of seven days' time for filing applications. It is further averred that the same guidelines are equally applicable to the new licences when the Government decides to give 2B licences in the Municipalities where there are no bar licences. The counter affidavit further averred that one more person has applied for grant of prior clearance and that the respondents have been awaiting orders from the Government for sanction of new bars in the Municipalities where there are no bars.

(3.) Under Rule 4 of the A.P. Excise (Grant of Licence of Selling by Bar and Conditions of Licence) Rules, 2005 (for short 'the Rules'), a licence in Form-2B, may be granted to an establishment licensed by the local authority to serve food such as a Hotel or a Restaurant, for the sale of Indian Liquor and Foreign Liquor in glasses or pegs for consumption within the licensed premises. As a prelude to grant of licence, Rule 5 of the Rules postulates grant of prior clearance from the Commissioner. The report of respondent No. 2, a copy of which is filed in the writ petition, would show that the petitioner has constructed a building and obtained Trade Licence and No Objection Certificate from the local authority for running a restaurant even though the restaurant was not functioning at the time of submission of the report. The stand taken in the counter affidavit that running of restaurant is a condition for grant of prior clearance, is not supported by the provisions of Rule 5 of the Rules. While Rule 5 envisages prior clearance for obtaining a licence, the requirement of running a restaurant arises when the stage is set for granting licence under Rule 4. While it is reasonable to insist that for grant of prior clearance, the applicant must have established the infrastructure required for running a restaurant, in the absence of a requirement that the restaurant should be functional at the time of consideration of grant of prior clearance, refusal to grant prior clearance on the ground that restaurant was not functional at the stage of consideration for grant of prior clearance cannot be sustained. The question whether the applicant was running a restaurant or not would be relevant when his application for grant of 2B licence after grant of prior clearance is considered.